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An Unholy Alliance

Slowjoe has spotted something calculated to start teeth grinding here on Samizdata.net

The Register talks about an attempt by the EU to railroad through the Intellectual Property Rights Enforcement Directive.

It appears to give the ‘rights holder’ carte blanche… almost the right to set up a private police force.

The interesting thing is that the rapporteur did an end-run around any debate. She also happens to be the wife of the head of Vivendi Universal.


8 comments to An Unholy Alliance

  • I read the article from The Register that you mention and at the time I was struck by how pro-EU IP Directive the piece was, particularly from an IT news website which one would expect in its coverage to consider the effects of this legislation on the IT industry and related technology industries rather than attempting to paint a picture of the opposition to this directive as members of the tin-foil hat brigade.

    I originally put the poor quality of this article down to ‘bad’ journalism (which seems to be fairly rife at The Register) but having now learned of the author’s personal interests the style of the piece makes more sense and it would appear to be more than just bad journalism.

    I wondered who ‘Lucy Sherriff’ was after initially reading the article – more than anything so I could add another The Register writer to my ‘do not read’ list which saves me time when I occasionally visit the website.

  • Charles Copeland

    Ekshelly, intellectual property rights is a pretty complex area. There’s no a priori libertarian position on the subject, as far as I know (but I may be mistaken, of course).

    The book to read is Landes and Posner’s ‘The Economic Structure of Intellectual Property Law’ — though it concerns the legal situation in the US, its theoretical component is also applicable to the rest of the world.

    Must get round to reading it myself, some day.

  • Rather than debate the merits or demerits of the journalism, shouldn’t we worry more about the meat of the issues?

    Since a search on news.google.com suggests that this is the second article in a week on the subject, we don’t seem to have much choice of journalism on this subject.

  • llamas

    The provisions of an Anton Piller order are seriously misrepresented in the linked Register article. The article suggests that the holder of intellectual property rights may simply round up a few heavies and go knock down the doors of anyone he thinks is infringing his rights.

    The Anton Piller order is what it says it is – anorder of the court. It is obtained on application to the court, supported by suitable evidence, and the applicant must persuade the court, not only that there is a high probability that his rights are being infringed by the party against whom the order is sought, but also that there is a great likelihood that the alleged infringer will destroy the evidence of his infringement were it to be sought in the course of normal discovery.

    If the court grants the order, it may define with great specificity exactly how the order will be served, including who must be present, who may not be present, and so forth. Such orders are usually only served in the presence of one or more officers of the court who are there to ensure that the order is carried out to the letter, and who are answerable to the court if it is not.

    While the APO is an instrument of great power in intellectual-property disputes, it is not granted caprciosuly or routinely, and in most senses, is no different than any other order for discovery which the court may grant. The suggestion of roving bands of prvate police enforcing intellectual property rights is pure hyperbole.



  • Cydonia


    “[The APO] in most senses, is no different than any other order for discovery which the court may grant.]

    Not so. There is a major difference. Breach of an APO is Contempt of Court which may entail imprisonment. That is not the case for breach of an ordinary disclosure order.

    p.s. What does “Llater” mean? Just wondering 😉

  • llamas

    Cydonia – you are quite right and I did not mean to suggest that an APO is quite the same thing in every way as a ‘routine’ order for discovery.

    What I meant was that it is just another means for discovery, it just happens to be ex-parte and often involves actual attendance at the place where infringing activities are alleged to be occurring.

    The term ‘civil search warrant’ covers it very well, and like a criminal warrant, the court will specify what is and is not to be searched for and seized, based upon the evidence which supported the application. The early practice of this order was highly concerned that APO’s, and their kissing cousin, the Mareva order, should not be used to sanctify ‘fishing expeditions’ or to permit punitive financial seizures which would chill the rights of the defendant. As you say, breach of the terms of the order is a very serious matter which cannot be eased around by the lawyer’s art (as breaches of common discovery, perhaps, can, sometimes . . . . ), and that is as it should be for any means of process as powerful as the APO can be. Thanks for clarifying.

    ‘llater’ is just a personal affectation. Pay it not the smallest mind.



  • llamas

    Oh, and just to add – unless the practice of AP Orders and Mareva injunctions has changed significantly since I was more-intimately involved with them, they can only be obtained on application to the High Court. So it’s not like you can slip one past a complaisant County Court judge here and there . . .

    I was present in Temple Hall along about 1983 when Lord Denning described the pleadings and analysis which led him to his appellate decisions in Piller, and I was fairly satisfied then that the right rules were in place to prevent them from being too-easily obtainable, to the point where they might become a weapon for the well-heeled plaintiff against the poor defendant. Unless the practice has substantially changed since then, it probably remains so, and indeed, I understand from current practitioners that the use of APOs has been declining rather than increasing.

    The ‘sky-is-falling’ rhetoric of the intellectual property lobbying groups about the APO and related measures does not seem to be justified by their actual practice. Besides, anyone who thinks that the recording industry, for example, is going to seek great sheafs of High Court orders against every pimply youth sharing some MP3’s in his back bedroom, can’t do math. If they are used at all, APOs will be reserved for the big players, who presumably know what they’re doing and what the consequences could be.



  • Guy Herbert

    My understanding of Anton Pillers coincides with llamas’s. Note too, that it is a form of interlocutory relief, and will prove expensive in an English Court should the subsequent hearing go against the user.

    On the other hand El Reg and others make too little of the extensive criminal jurisdiction created by the new directive.

    Where I depart from llamas is when he says “[…]
    and like a criminal warrant, the court will specify what is and is not to be searched for and seized, based upon the evidence which supported the application.”
    If only. We don’t have US protections against search and seizure. Once they have obtained (either by warrant, or an ever widening contingent power) grounds for a search, police cannot be prevented from looking for and seizing anything that they believe to be evidence (or even in some circumstances proceeds) of crime. (And even if they do so unlawfully it won’t necessarily prevent them getting a conviction.)